Posts Tagged ‘Bill of Rights’

It began in the early 1940s. FDR had launched the New Deal’s collectivization of America, and a small but prescient group of libertarian and conservative intellectuals were in rebellion – such thinkers as Richard Weaver, Ludwig von Mises, Friedrich Hayek, John T. Flynn, Rose Wilder Lane, Isabel Paterson, and Ayn Rand, to be followed a decade later by the likes of Russell Kirk, Frank Meyer, and Murray Rothbard.

Out of their cerebral and activist efforts there began the movement to repeal the overweening statism that was infiltrating America from Europe via Karl Marx and John Maynard Keynes. The infamous year of 1913 was the infiltration’s major manifestation. FDR’s New Deal was its Rubicon. In reaction to the radical political changes taking place during the 1913-1940 era, today’s freedom movement was born.

It is not well-known by the general public, but when the modern freedom movement first began in the early 1940s, it was not split between libertarians and conservatives. It was one coalition unified in rebellion against FDR’s monster welfare state. By 1970, however, the movement had become tragically bifurcated. The radical economist Murray Rothbard took libertarians off into anarchy, while the traditionalist philosopher Russell Kirk drove conservatives into statism. This split has created two incomplete visions – contemporary libertarianism and conservatism – that are, in their singularity, incapable of effectively challenging the authoritarian mega-state.

Conservatives are caught up in the puritanical swamps of legislating morality and hegemonic conquest of the world, while libertarians chase the philosophical absurdities of moral subjectivism and ersatz individualism. Conservatives wish to return to the Middle Ages and mandate morality via the state, while Libertarians wish to do away with any reference to morality altogether. Conservatives revere leaders like Savonarola and John Calvin. Libertarians excite themselves with Larry Flynt and the Beatles’ “Nowhere Man.” Somewhere the Founding Fathers are twisting in their graves over each of these political movements and their embarrassing lack of comprehension concerning the requisites for a free and individualist society.

How do we confront this lack of comprehension? We must purge the libertarian and conservative movements of the fallacies they have adopted from Murray Rothbard and Russell Kirk. This will require a “rational theory of politics” that can bring together the two philosophical streams of John Locke and Edmund Burke so as to restore the original Republic of States that Jefferson and the Founders envisioned. More on this theory shortly.

The Tragic Bifurcation

In the aftermath of LBJ’s defeat of the Goldwater forces in the 1964 election, most libertarians, under the influence of the pied piper Murray Rothbard, split off from the official path of the freedom movement and wandered into the utopian forest of some very radical political-philosophical principles – those of anarchism.

In contrast, conservatives went the other direction by abandoning principle altogether to align themselves with Irving Kristol’s collectivist neo-conservatives and tolerate the very government usurpations their movement had been formed to repeal. They began their sellout when Richard Nixon declared in 1971 that, “We’re all Keynesians now.” They continued it with Ronald Reagan’s massive expansion of the welfare state and when George W. Bush launched a tide of spending, privilege, and corruption totally unhinged from sanity and reality.

Can today’s freedom movement be rescued from this tragedy of default? Can the American people be convinced to restore the Republic? Yes, but in order for such a revolution to actually take place, American libertarians and conservatives must face up to some unsettling realities and take appropriate action.

The conservative wing of the “freedom movement” has been grievously corrupted by Machiavellian statists. The most important cause of this has been Russell Kirk’s philosophical emphasis on tradition being transcendent to reason and his rejection of “equal individual rights” in favor of special privileges and a flexible Constitution. This has led conservatives into a Faustian bargain with the statist enemy and opened the door for the hijacking of their movement by neoconservatives, thus moving most of today’s conservatives to the left into lockstep with statist liberals.

The libertarian wing of the “freedom movement” has been equally corrupted, but in the opposite direction to the far right on the spectrum. The most important cause of this has been Murray Rothbard’s anarchist politics that privatizes all functions of the government, even the military, police, and courts of law. In addition his followers espouse an egoistic “do your own thing” culture that refuses to morally condemn the traditional evils of history. Whatever is peaceful is their creed. It is a sense of life that worships what the Greeks called the sin of “eleutheromania,” freedom without limits.

To better understand the nature of this disastrous split between libertarians and conservatives, a brief exposition of America’s concept of freedom is necessary.

Jeffersonianism Is America’s Philosophy

The American concept of freedom has its ideological roots in the Founders’ libertarian political ideal, combined with conservative metaphysics and culture. It is a blend of the 17th and 18th century thinkers, John Locke and Edmund Burke (one libertarian and the other conservative), which heavily influenced Americans from the start and up through World War I – the former emphasizing reason and individualism, the latter tradition and community. It manifested in what is called Jeffersonianism.

This political philosophy stands for the individual over the collective, a strictly limited constitutional government based upon federalism, equal “rights” instead of equal “results,” a free-market economy, no entangling foreign alliances, and an objective code of morality for society as opposed to the moral neutrality of Rothbardians and modern liberals. This is what needs to be restored.

The famous conservative philosopher, Richard Weaver, at the University of Chicago in the 1940s and 1950s, and author of the great classic, Ideas Have Consequences, understood well this Jeffersonian concept of America and shaped his defense of freedom around it accordingly. Unlike today’s neoconservatives, Weaver understood the necessity of limiting the tyrannical danger of the state. He would be horrified with today’s neoconservative attacks upon the Founders’ vision of laissez-faire. He grasped the philosophical common ground between libertarianism and conservatism:

“[C]onservatives and libertarians stand together,” he said. “Both of them believe that there is an order of things which will largely take care of itself if you leave it alone.” Weaver was a strict constitutionalist because a Constitution provided for a “settled code of freedom for the individual.”

This is the crucial issue of our time – restoration of libertarian conservatism in America and its “settled code of freedom for the individual.” If we, who believe in free enterprise and the Constitution, wish to reverse America’s drift into an authoritarian state, our goal must not be to accommodate, but to purge the Gargantua on the Potomac that usurps our rights and freedoms with impunity. Libertarians and conservatives must be reunited to effectively challenge this monster.

My book, The Golden Mean: Libertarian Politics, Conservative Values explains the need for this ideological unification and how to bring it about. I realize authors don’t usually promote their own books in their articles, but in defense of my lack of orthodoxy, I cite the popular economist, Walter Williams.

Several years ago he was writing a review in his newspaper column for one of his own books. And in defense of his partisan effort, Professor Williams explained to his readers that his mother had always told him, “it’s a poor dog who won’t wag his own tail.” So if the reader will indulge me, I would like to partake in a little tail wagging.

The Golden Mean is the philosophical answer to our immensely troubled times. It puts forth the “rational theory of politics” referred to earlier, and which we desperately need in order to challenge the authoritarian statism that has been destroying our republic ever since 1913.

The libertarian movement is lost in “utopian unreality.” The conservative movement is lost in “statist appeasement.” This is because of the disastrous libertarian-conservative split spawned by Murray Rothbard and Russell Kirk back in the 1960s. Without a correction of this split, freedom cannot be adequately defended and restored. Both libertarian and conservative activists are terribly misguided in their insistence on remaining separate movements. Conservatism needs libertarian politics in order to be just, and libertarianism needs conservative moral values in order to be workable.

The statist Gargantua controls our lives today because there is no effective ideological counterforce to overthrow its moral-philosophical-theoretical base. The Golden Mean provides that counterforce because it shows how to once again merge the two great systems of philosophical thought that brought America into being: libertarianism and conservatism. It shows how to recapture the Jeffersonian ideal.

The Declaration of Independence pledges Americans’ “unalienable Rights” through Governments “deriving their just powers from the consent of the governed …
“Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …”

More and more of us are determined to alter our government by denying our consent to President Barack Obama’s continuous discarding of our individual constitutional liberties, as I’ve demonstrated in recent columns.

But the most starkly lucid reasons for this looming Second American Revolution have been detailed by Randy E. Barnett, a Georgetown University professor of constitutional law and author of the book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2005).

In a recent column for The Wall Street Journal, Barnett provides a message of salvation to all Americans, regardless of political party. It is a model of unavoidable clarity defining who we are:

“In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants” (“The NSA’s Surveillance Is Unconstitutional,” Barnett, The Wall Street Journal, July 12).

Furthermore, he explains, “for the people to control their servants (in Government), however, they must know what their servants are doing.”

This proved essential over time for the first American Revolution to succeed (due to the efforts of Samuel Adams, the Sons of Liberty and the Committees of Correspondence).

Barnett writes: “Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office.

“Yet such judgment and control is impossible without the information that such secret programs conceal,” Barnett continues. “Had it not been for the recent leaks, (much of) the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.”

He then gets to the ever-more pervasive and powerful Foreign Intelligence Surveillance Court. Once again, through the media, Americans now know of the court’s existence, but hardly anything else about how this secret institution still enables the National Security Agency to do its work unknown to us.

Barnett’s solution: “Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs.”

I, too, think that in view of its record through the years, the Foreign Intelligence Surveillance Court must no longer exist. But any credible constitutional replacement would also obviously require the replacement of this president and the current, absurdly named Justice Department.

Eric Lichtblau’s recent front-page New York Times expose is a deeply important corollary exposure of the unconstitutionality of the Foreign Intelligence Surveillance Court and its prime beneficiary — the still boundlessly unconstitutional NSA. Reading what follows about this secret court’s utter contempt for the separation of powers — fully supported by Obama — makes me ask, again, how can this president not be impeached for ravaging the oath of office?

“The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions” (“In Secret, Court Vastly Broadens Powers of N.S.A.,” Lichtblau, The New York Times, July 7).

Have any of you sovereign citizens in this constitutional republic been at all consulted on the appointments of these judges who are deciding on broad constitutional questions?

Again, Georgetown’s Barnett echoes Thomas Jefferson and James Madison when he reminds us that, “for the people to control their servants in Government, however, they must know what their servants are doing.”

And, thanks to the revelations of former NSA contractor Edward Snowden, more members of the media have been awakened to these secret removals of the citizenry’s authority over crucial parts of the Constitution. But there has not been enough sustained media coverage with the depth and consistency necessary to expose what our ultimate servants in Government are allowing to happen.

By contrast, a precipitating cause of the original American Revolution was the Committees of Correspondence, which sent news around the colonies of how our British rulers here and in London were utterly ignoring our rights as British citizens going back to the Magna Carta.

One example of an American president who continued to act as if he were emulating King George III — even after our First Amendment was ratified in 1791 — is John Adams. Our second president led Congress to enact the Alien and Sedition Acts in 1798, which made it seditious for new American citizens to use speech that brought the president or Congress “into contempt or disrepute.”

As that news went through the new states, Adams lost his chance for a second presidential term.

If the media will now keep on this story while also gathering new information, at last Obama may be impeached before his years as president come to an end.

“Tree Of Liberty Must Be Refreshed From Time to Time With The Blood Of Patriots & Tyrants.”

WASHINGTON DC - USA – As President Barack Hussein Obama vowed to put his full weight into banning and restricting gun ownership in the US in a landmark speech today, Americans across their great nation have an uneasy feeling inside of them. Their founding fathers warned them that this day would one day come.

America was built on the premise of Freedom, Liberty and Justice. The Founding Fathers of the United States of America fought so hard for their nation, for their people. They would be truly appalled at what is happening now in their cherished land, where Freedom is being choked, where Liberty is being smothered, and where Justice is being subverted.

George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, Samuel Adams, Thomas Paine, Alexander Hamilton, Gouverneur Morris, where are you now that your people need you so? Their spirits live only in the constitution of the United States but for how much longer?

How long can you, the people, stand by and watch the good decent American tenets that the Founding Fathers wrote, be torn up and thrown on the floor like a piece of trash? Are you going to stand there when they come to take away all of your freedom? Are you going to stand there when they tell you you are wrong to believe in Freedom, Justice and Liberty?

“Liberty, once lost, is lost forever” said John Adams.

And when they come for your guns remember these words from Thomas Paine: “It is the duty of the patriot to protect his country from its government.”

As the TSA worker touches your young daughter, quote these words from James Madison out to the people standing in the checkpoint: “If tyranny and oppression come to this land, it will be under the guise of fighting a foreign enemy.”

The Founding Fathers knew what was coming and they prepared the American people for this very outcome, they knew that some day the very government that was meant to govern the people would be the tyranny that terrorises the people. They knew that eventually things have to be treated to get better, just like an illness, America is sick and the only doctor that can cure it is YOU the people. Don’t let the corrupt tyranny put you in a FEMA camp. Don’t let the corrupt hypocrites and liars tell you that you are wrong to believe in the goodness that you believe in. Don’t let these pirates who have taken over change the laws anymore. YOU are the law. YOU the people are the law.

Thomas Jefferson knew what eventually happens in government when he said: “Experience hath shown that even under the best forms of government, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

And to no end, he also meant it, when he said: “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”

Americans – Like Nazi Germans – Don’t Notice that All of Our Rights Are Slipping Away

Americans Are Acting Like Slowly Boiling Frogs

In the classic history of Nazi Germany, They Thought They Were Free, Milton Mayer writes:

“What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it. “This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.

The German citizens were boiling frogs … the water heating up so gradually that they didn’t realize they had to jump out of the pot to safety.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Of course, Muslims are more or less subject to a separate system of justice in America.And 1st Amendment rights are especially chilled when power has become so concentrated that the same agency which spies on all Americans also decides who should be assassinated.

Second Amendment

The 2nd Amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence. More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

The gun control debate – including which weapons and magazines are banned – is still in flux …

Third Amendment

The 3rd Amendment prohibits the government forcing people to house soldiers:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Hey … we’re still honoring one of the Amendments! Score one for We the People!

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The domestic use of drones to spy on Americans clearly violates the Fourth Amendment and limits our rights to personal privacy.

Paul introduced a bill to “protect individual privacy against unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones.”Emptywheel notes in a post entitled “The OTHER Assault on the Fourth Amendment in the NDAA? Drones at Your Airport?”:

As the map above makes clear–taken from this 2010 report–DOD [the Department of Defense] plans to have drones all over the country by 2015.

Many police departments are also using drones to spy on us. As the Hill reported:

At least 13 state and local police agencies around the country have used drones in the field or in training, according to the Association for Unmanned Vehicle Systems International, an industry trade group. The Federal Aviation Administration has predicted that by the end of the decade, 30,000 commercial and government drones could be flying over U.S. skies. “Drones should only be used if subject to a powerful framework that regulates their use in order to avoid abuse and invasions of privacy,” Chris Calabrese, a legislative counsel for the American Civil Liberties Union, said during a congressional forum in Texas last month. He argued police should only fly drones over private property if they have a warrant, information collected with drones should be promptly destroyed when it’s no longer needed and domestic drones should not carry any weapons.He argued that drones pose a more serious threat to privacy than helicopters because they are cheaper to use and can hover in the sky for longer periods of time.A congressional report earlier this year predicted that drones could soon be equipped with technologies to identify faces or track people based on their height, age, gender and skin color.

The American government is collecting and storing virtually every phone call, purchases, email, text message, internet searches, social media communications, health information, employment history, travel and student records, and virtually all other information of every American. [And see this.]Some also claim that the government is also using facial recognition software and surveillance cameras to track where everyone is going. Moreover, cell towers track where your phone is at any moment, and the major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations and other data in 2011. (And – given that your smartphoneroutinely sends your location information back to Apple or Google – it would be child’s play for the government to track your location that way.) Your iPhone, or other brand of smartphone is spying on virtually everything you do (ProPublica notes: “That’s No Phone. That’s My Tracker“).As the top spy chief at the U.S. National Security Agency explained this week, the American government is collecting some 100 billion 1,000-character emails per day, and 20 trillion communications of all types per year.He says that the government has collected all of the communications of congressional leaders, generals and everyone else in the U.S. for the last 10 years.He further explains that he set up the NSA’s system so that all of the information would automatically be encrypted, so that the government had to obtain a search warrant based upon probably cause before a particular suspect’s communications could be decrypted. [He specifically did this to comply with the Fourth Amendment's prohibition against unreasonable search and seizure.] But the NSA now collects all data in an unencrypted form, so that no probable cause is needed to view any citizen’s information. He says that it is actually cheaper and easier to store the data in an encrypted format: so the government’s current system is being done for political – not practical – purposes.He says that if anyone gets on the government’s “enemies list”, then the stored information will be used to target them. Specifically, he notes that if the government decides it doesn’t like someone, it analyzes all of the data it has collected on that person and his or her associates over the last 10 years to build a case against him.

Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations….The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases ….The IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city. The systems use cables or WiFi to pair audio conversations with camera images in order to produce synchronous recordings. Audio and video can be monitored in real-time, but are also stored onboard in blackbox-like devices, generally for 30 days, for later retrieval. Four to six cameras with mics are generally installed throughout a bus, including one near the driver and one on the exterior of the bus. Privacy and security expert Ashkan Soltani told the Daily that the audio could easily be coupled with facial recognition systems or audio recognition technology to identify passengers caught on the recordings.

Street lights that can spy installed in some American citiesAmerica welcomes a new brand of smart street lightning systems: energy-efficient, long-lasting, complete with LED screens to show ads. They can also spy on citizens in a way George Orwell would not have imagined in his worst nightmare.­With a price tag of $3,000+ apiece, according to an ABC report, the street lights are now being rolled out in Detroit, Chicago and Pittsburgh, and may soon mushroom all across the country.Part of the Intellistreets systems made by the company Illuminating Concepts, they have a number of “homeland security applications” attached.Each has a microprocessor “essentially similar to an iPhone,” capable of wireless communication. Each can capture images and count people for the police through a digital camera, record conversations of passers-by and even give voice commands thanks to a built-in speaker.Ron Harwood, president and founder of Illuminating Concepts, says he eyed the creation of such a system after the 9/11 terrorist attacks and the Hurricane Katrina disaster. He is “working with Homeland Security” to deliver his dream of making people “more informed and safer.”

Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.

The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”

But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.

As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.

Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.

However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.

The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.

Border agents don’t need probable cause and they don’t need a stinking warrant since they don’t need to prove any reasonable suspicion first. Nor, sadly, do two out of three people have First Amendment protection; it is as if DHS has voided those Constitutional amendments and protections they provide to nearly 200 million Americans. Don’t be silly by thinking this means only if you are physically trying to cross the international border. As we saw when discussing the DEA using license plate readers and data-mining to track Americans movements, the U.S. “border” stretches out 100 miles beyond the true border. Godfather Politics added:

But wait, it gets even better! If you live anywhere in Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey or Rhode Island, DHS says the search zones encompass the entire state.

Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have a “longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.” This applies to electronic devices, according to the recent CLCR “Border Searches of Electronic Devices” executive summary [PDF]:

Fourth Amendment – The overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012. First Amendment – Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.

The ACLU said, Wait one darn minute! Hello, what happened to the Constitution? Where is the rest of CLCR report on the “policy of combing through and sometimes confiscating travelers’ laptops, cell phones, and other electronic devices—even when there is no suspicion of wrongdoing?” DHS maintains it is not violating our constitutional rights, so the ACLU said:

If it’s true that our rights are safe and that DHS is doing all the things it needs to do to safeguard them, then why won’t it show us the results of its assessment? And why would it be legitimate to keep a report about the impact of a policy on the public’s rights hidden from the very public being affected?

As ChristianPost wrote, “Your constitutional rights have been repealed in ten states. No, this isn’t a joke. It is not exaggeration or hyperbole. If you are in ten states in the United States, your some of your rights guaranteed by the Bill of Rights have been made null and void.”The ACLU filed a Freedom of Information Act request for the entire DHS report about suspicionless and warrantless “border” searches of electronic devices. ACLU attorney Catherine Crump said “We hope to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”Meanwhile, the EFF has tips to protect yourself and your devices against border searches. If you think you know all about it, then you might try testing your knowledge with a defending privacy at the U.S. border quiz.

Wired pointed out in 2008 that the courts have routinely upheld such constitution-free zones:

Federal agents at the border do not need any reason to search through travelers’ laptops, cell phones or digital cameras for evidence of crimes, a federal appeals court ruled Monday, extending the government’s power to look through belongings like suitcases at the border to electronics. The 9th U.S. Circuit Court of Appeals sided with the government, finding that the so-called border exception to the Fourth Amendment’s prohibition on unreasonable searches applied not just to suitcases and papers, but also to electronics. Travelers should be aware that anything on their mobile devices can be searched by government agents, who may also seize the devices and keep them for weeks or months. When in doubt, think about whether online storage or encryption might be tools you should use to prevent the feds from rummaging through your journal, your company’s confidential business plans or naked pictures of you and your-of-age partner in adult fun.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 6th Amendment guarantees the right to hear the criminal charges levied against us and to be able to confront the witnesses who have testified against us, as well as speedy criminal trials, and a public defender for those who cannot hire an attorney:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The 7th Amendment guarantees trial by jury in federal court for civil cases:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The 10th Amendment provides that powers not specifically given to the Federal government are reserved to the states or individual:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Two of the central principles of America’s Founding Fathers are:

(1) The government is created and empowered with the consent of the people and(2) Separation of powers

Today, most Americans believe that the government is threatening – rather than protecting – freedom … and that it is no longer acting with the “consent of the governed”.And the federal government is trampling the separation of powers by stepping on the toes of the states and the people. For example, former head S&L prosecutor Bill Black – now a professor of law and economics – notes:

The Federal Reserve Bank of New York and the resident examiners and regional staff of the Office of the Comptroller of the Currency [both] competed to weaken federal regulation and aggressively used the preemption doctrine to try to prevent state investigations of and actions against fraudulent mortgage lenders.

Indeed, the federal government is doing everything it can to stick its nose into every aspect of our lives … and act like Big Brother.

When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.

In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.”Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.

Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-Ã -vis the States.

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.

The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union.” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states” through such language.

Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.

The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.

To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”

Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”

When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.

Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.

By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles.If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”

Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.

Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.

Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.

Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”

I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.

Of course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.

The Second Amendment Is About Protecting Ourselves From The (Government) State.

My friend Brett Joshpe has published an uncharacteristically soft-headed piece in the San Francisco Chronicle arguing that in the wake of the massacre at Sandy Hook, conservatives and Republicans should support what he calls “sensible” gun-control laws. It begins with a subtext of self-congratulation (“As a conservative and a Republican, I can no longer remain silent . . . Some will consider it heresy,” etc.), casts aspersions of intellectual dishonesty (arguments for preserving our traditional rights are “disingenuous”), advances into ex homine (noting he has family in Sandy Hook, as though that confers special status on his preferences), fundamentally misunderstands the argument for the right to keep and bear arms, deputizes the electorate, and cites the presence of teddy bears as evidence for his case.

Brett, like practically every other person seeking to diminish our constitutional rights, either does not understand the purpose of the Second Amendment or refuses to address it, writing, “Gun advocates will be hard-pressed to explain why the average American citizen needs an assault weapon with a high-capacity magazine other than for recreational purposes.” The answer to this question is straightforward: The purpose of having citizens armed with paramilitary weapons is to allow them to engage in paramilitary actions. The Second Amendment is not about Bambi and burglars — whatever a well-regulated militia is, it is not a hunting party or a sport-clays club. It is remarkable to me that any educated person — let alone a Harvard Law graduate — believes that the second item on the Bill of Rights is a constitutional guarantee of enjoying a recreational activity.

There is no legitimate exception to the Second Amendment for military-style weapons, because military-style weapons are precisely what the Second Amendment guarantees our right to keep and bear. The purpose of the Second Amendment is to secure our ability to oppose enemies foreign and domestic, a guarantee against disorder and tyranny. Consider the words of Supreme Court justice Joseph Story — who was, it bears noting, appointed to the Court by the guy who wrote the Constitution:

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

“Usurpation and arbitrary power of the rulers” — not Bambi, not burglars. While your granddad’s .30-06 is a good deal more powerful than the .223 rifles that give blue-state types the howling fantods, that is not what we have a constitutional provision to protect. Liberals are forever asking: “Why would anybody need a gun like that?” And the answer is: because we are not serfs. We are a free people living under a republic of our own construction. We may consent to be governed, but we will not be ruled.

The right to keep and bear arms is a civil right. If you doubt that, consider the history of arms control in England, where members of the Catholic minority (and non-Protestants generally) were prohibited from bearing arms as part of the campaign of general political oppression against them. The Act of Disenfranchisement was still in effect when our Constitution was being written, a fact that surely was on the mind of such Founding Fathers as Daniel Carroll, to say nothing of his brother, Archbishop John Carroll.

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